0520120553
01-30-2013
Elizabeth A. Watkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Elizabeth A. Watkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Request No. 0520120553
Appeal No. 0120092749
Hearing No. 460-2008-0179X
Agency No. 6H-000-0001-08
DENIAL
The Agency timely requested reconsideration of the decision in Elizabeth A. Watkins v. U.S. Postal Service, EEOC Appeal No. 0120092749 (June 29, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
On February 10, 2008, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female), disability, and in reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when:
1. On October, 27, 2007, the Group Supervisor (S1) asked Complainant to resign from the Agency's Career Leadership Program (CLP);
2. On October 26, 2007, Complainant complained to S1 that she had been assigned clerical work rather than Level 14 work, and S1 replied that Complainant could not perform Level 14 work because of her medical restrictions;
3. On October 26, 2007, during a discussion about Complainant's June 2007 request to engage in outside employment, S1 stated that she needed more information and would discuss the matter further after Complainant's restrictions were removed;
4. From October 2 through November 1 and after November 15, 2007, Complainant was treated in a demoralizing manner by being assigned clerical work;
5. On November 5. 2007, S1 sent Complainant an e-mail chastising her for working flex-time;
6. On November 14, 2007, S1 became upset with Complainant for giving medical information to the Associate Medical Officer (AMO) rather than S1;
7. On November 15, 2007, S1 sent Complainant an e-mail that chastised her for telling the Assistant Inspector in Charge (AAIC) that she would be working from home, and that stated S1 would not allow Complainant to work from home under her current medical restrictions;
8. On November 15, 2007, S1 called Complainant and told her that she had overstepped her bounds on a project; and
9. On January 15, 2008, S1 placed Complainant on administrative leave pending a Fitness for Duty Examination (FFDE).
In its final decision, the Agency found that Complainant failed to prove that she was subjected to unlawful discrimination or harassment. In our previous decision, the Commission affirmed the Agency's findings, except with respect to claims 3, 7, and 9. With respect to claim 3, the Commission noted that S1 stated that she denied Complainant's request for outside employment because Complainant's June 2007 e-mail contained insufficient information, Complainant had not been forthcoming about the extent of her real estate activity, and Complainant was working under restrictions and could not fully perform the duties of her position. We determined that Complainant's request for a one-month travel restriction constituted a request for reasonable accommodation, and the Agency granted the request when it allowed Complainant to work without travel. As such, we found that S1's reference to Complainant's medical restrictions constituted direct evidence of retaliatory motivation, and that the Agency unlawfully discriminated against Complainant on the basis of reprisal when it denied her request to engage in outside employment. Additionally, the Commission found that, absent the retaliatory motivation, the Agency would have allowed Complainant to submit additional information to support her request for outside employment.
With respect to claim 7, the Commission noted that S1 inquired why Complainant had contacted the AAIC rather than S1 about working from home on November 15 and 16, 2007, and stated that she would not allow Complainant to work from home under her "current working conditions, the restrictions." The Commission found that S1's reference to Complainant's medical restrictions constituted direct evidence of retaliatory motivation; therefore, the Agency discriminated against Complainant on the basis of reprisal when it denied her request to work from home on November 16, 2007, and instead required her to take sick leave.
Regarding claim 9, the Commission noted that S1 stated that Complainant should be sent for an FFDE because Complainant accused her of harassment and filed an EEO complaint, and the AMO casually accepted these references to Complainant's EEO activity as evidence of Complainant's allegedly "distorted view" of her work environment. The Commission found that the Agency's actions constituted direct evidence of retaliatory motivation for placing Complainant on administrative leave pending the FFDE, although the Agency ultimately did not subject Complainant to an FFDE.
In its request for reconsideration, the Agency maintains that the statements identified in our previous decision as direct evidence of retaliatory animus are "merely oblique references to the Complainant's work restrictions and or/EEO claim activity." The Agency further maintains that S1's actions could not have been reasonably likely to deter employees from engaging in protected activity because Complainant continued to engage in EEO activity after S1's retaliatory actions. Additionally, the Agency maintains that Complainant was not subjected to an adverse action when the Agency denied her request to work from home and denied authorization for outside employment. Finally, the Agency maintains that Complainant was not aggrieved when she was placed on administrative leave because she retained all pay and benefits when she was placed into administrative leave status.
We note that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
The Agency maintains that statements identified in our previous decision as direct evidence of retaliatory animus are "merely oblique references to the Complainant's work restrictions and or/EEO claim activity." Contrary to the Agency's assertions, S1's references to Complainant's EEO activity as a basis for Agency actions were not merely oblique. Instead, S1 directly asserted that Complainant should be denied outside employment, denied her request to work from home, and placed her on administrative leave because of her EEO activity. As such, S1's statements clearly reflect bias against Complainant and are related to claims 3, 7, and 9. EEOC Compliance Manual, Section 8: Retaliation, EEOC No. 915.003 (May 20, 1998). Therefore, we conclude that our previous decision properly found that S1's comments about Complainant's EEO activity constituted direct evidence of retaliatory motive.
Additionally, the Agency maintains that placing Complainant on administrative leave, denying her request to work from home, and denying her request for outside employment do not constitute adverse actions or render her aggrieved. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998)). Instead, under the Commission's broad view of reprisal, any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim. Id. The Agency further maintains that S1's actions could not have been reasonably likely to deter employees from engaging in protected activity because Complainant continued to engage in EEO activity after S1's retaliatory actions. However, in assessing whether an employer's actions are reasonably likely to deter EEO activity, we must consider the potential impact of an employer's actions on all its employees, even if a particular complaint has not yet been deterred. In this case, we find that our previous decision properly found that the Agency's actions are reasonably likely to deter employees from engaging in EEO activity. Therefore, we deny the Agency's request for reconsideration.
Accordingly, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY request. The decision in EEOC Appeal No. 0120092749 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Orders as set forth below.
ORDER (E0610)
Within sixty (60) days of the date this decision becomes final, the Agency is so ORDERED:
1. The Agency shall make a determination on Complainant's request to engage in outside employment without regard to Complainant's EEO activity or protected bases. If the Agency needs additional information to make its determination, it shall identify the necessary relevant information and shall afford Complainant an opportunity to submit the necessary information. Complainant shall cooperate in the Agency's efforts to make the determination and shall provide all necessary relevant information requested by the Agency.
2. The Agency shall restore the sick leave taken by Complainant on November 16, 2007.
3. The Agency shall pay Complainant back pay, including any Law Enforcement Availability Pay, that she lost as a result of being placed on Administrative Leave. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. � 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."
4. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages as a result of the Agency's discrimination based on Complainant's protected activity, and shall afford Complainant an opportunity to establish a causal relationship between the discrimination and any pecuniary or non-pecuniary losses. Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she is entitled to as a result of the discrimination which resulted from her protected activity, and shall provide all relevant information requested by the Agency. The Agency shall issue a new agency decision awarding compensatory damages to Complainant within sixty (60) days of the date this decision becomes final.
5. The Agency shall provide eight (8) hours of EEO training to the involved management officials regarding their responsibilities under EEO laws.
6. The Agency shall consider taking appropriate disciplinary action against management officials responsible for the discrimination against Complainant. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify die action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the Agency shall furnish documentation of their departure date(s).
7. The Agency shall post a notice in accordance with the paragraph below entitled "Posting Order."
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Headquarters in Arlington, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 30, 2013
Date
2
0520120553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120553